5 Ways to Beat a Statutory Summary Suspension
When you get pulled over and you’ve been drinking, you face a difficult choice. You could either blow into a breathalyzer and submit to chemical testing, or not. Which one is better? Well… it depends.
Should I Blow into the Breath Machine?
The problem is, if you feel like you might be over the limit but decide to play it safe and you don’t blow into the breath machine or submit to chemical testing – you’ll lose your driving privileges for a full 12 months for those people considered to be a “first offender” for DUI. For others, who have received a DUI in the last 5 years or for those whose case involves very serious injuries or death, the loss of driving privileges could be 3 years in length or might even result in a revocation of your driving privileges.
This loss of driving privileges is called a Statutory Summary Suspension and begins 46 days after you were issued the Notice of Statutory Summary Suspension, which is a paper document usually handed to you when being released from the police station after the arrest for your DUI. Although it’s technically considered a civil penalty, those who receive it certainly consider it to be basically a punishment for not cooperating with police.
What Does Chemical Testing in Illinois Mean?
When we refer to chemical testing, what that refers to is blood, breath or urine testing. In a DUI in Chicago, or anywhere in Illinois, if the police have probable cause (meaning a good reason or well-supported suspicion) to ask for chemical testing, you will suffer a loss of privileges as described above if you don’t comply. That means if they have a good reason to request all three types of tests, you’ll be considered to have “refused” if you don’t do all three.
Many times, a defendant will agree to blow into the breath machine, register a very low blow or .00, and then the police will request a urine or blood test or both. The defendant might then choose to refuse the additional testing, because they feel like they had already cooperated enough. Although that might seem true, under DUI laws in Illinois, it’s still considered to be a refusal unless you take ALL the chemical tests that the police officer lawfully requested. You’re not able to dictate which tests you want to take. Even when people have a fear of needles or of urinating into a cup in front of others, a failure to take all requested chemical tests can be a problem. But your attorney may be able to convince a judge later that your conduct was not a refusal.
Blowing too High into the Breath Machine
If on the other hand, if you do blow or submit to drug testing, you will only lose your driving privileges for 6 months (if you’re considered to be a first offender). Contrary to what some people believe, not blowing doesn’t guarantee that you will win at trial. People who do not blow into breathalyzers get convicted of DUIs every day. However, not blowing may give you a better chance at trial if the other evidence against you is weak. The decision whether to submit to testing or not is a trade-off, and some people are willing to take the risk that they will be under the limit, while others are not. One thing is for sure though: if you do not blow or submit to drug testing, you will lose your driving privileges for at least 12 months.
Most people are unaware that their lawyer can try to get this year-long suspension rescinded by filing a petition. The petition is called a “Petition to Rescind the Statutory Summary Suspension.” This is an all-or-nothing remedy: the judge will either fully rescind the suspension and let you drive, or not. The judge will not shorten the amount of time that you are suspended. The police officer will likely not tell you this, but everyone charged in Illinois with a DUI has a right to a hearing to argue why they should not have their driving privileges suspended.
Contesting a Summary Suspension
In order to contest a Statutory Summary Suspension, you must file a petition within 90 days of the notice of Statutory Summary Suspension (usually when you got arrested). The petition itself is a form document in most counties and all you have to do is check one or more of the bases for which you are challenging the suspension. You are then guaranteed a hearing within 30 days of filing the petition (unless you postpone it or ask for a continuance), and if you don’t get the hearing, then your suspension will be rescinded. It is called a “Trainor violation” when you do not get your hearing within 30 days of filing the petition to rescind (named after a legal case of the same name). If your lawyer agrees to a continuance, the 30 days will be extended and this is sometimes referred to as “tolling Trainor.” This is why the drivers’ lawyer often does not agree to a continuance as a strategy decision. The proper venue for the hearing to rescind is almost always the court where the defendant is appearing for the actual DUI case.
Remember: if you win your DUI case or get a successful result, this will not automatically rescind your Statutory Summary Suspension. It doesn’t work like that. You can think of the DUI and the Statutory Summary Suspension as two separate cases. The suspension is a civil proceeding initiated by the Secretary of State, and the DUI is a criminal proceeding initiated by the State of Illinois. The outcome of the DUI case does not typically affect the outcome of the Statutory Summary Suspension. So, even if you win the DUI case at trial, and the criminal charge is completely thrown out, it doesn’t mean that the Judge will also agree to throw out the summary suspension.
There are five main ways that you can challenge your 12-month suspension in a Petition to Rescind. One or more of these must be proven by a preponderance of the evidence in order for you to prevail and to have your suspension lifted. The motorist carries the burden of proof initially and then the burden will shift to the State once the motorist proves one of these five bases listed below by a preponderance of the evidence. Remember: the judge will not hear any evidence about a hardship or about issuing a permit at this point in the process (those type of matters are only handled by the Secretary of State).
The five main reasons that can be used to challenge the Statutory Summary Suspension are listed below (there are other possible ways to challenge it, such as when the State fails to respond to discovery requests, but that is discussed elsewhere).
Reason #1: You weren’t warned by the officer what would happen if you refused to submit to chemical testing.
An officer must read you a warning every time you are asked to take a chemical test to determine if you are under the influence. This warning is called the “Warning to Motorists.” You will be given a paper copy of it to sign before you submit to the chemical testing. The warning tells you what will happen if you fail the test or if you refuse to consent to it.
The officer will explain to you that if you are a first-time DUI offender and you refuse to blow or submit to chemical testing, you will lose your driving privileges for 12 months (for purposes of the Statutory Summary Suspension, a “first time offender” doesn’t mean that you’ve never had a DUI before, but instead basically means that you haven’t had a DUI in the last 5 years. The definition of a 1st time offender for purposes of actual DUI sentencing is different and basically means that you’ve never had DUI ever before).
If you are a first-time DUI offender and are over the limit (for alcohol or drugs), you will lose your privileges for only 6 months. If you are not a 1st time DUI and you refuse to submit to chemical testing, you will lose your driving privileges for 36 months. If you are not a 1st time DUI offender and you blow above the limit or fail the blood testing, you will lose your license for 12 months. The only scenario where you would not lose your license is if you submit to all chemical testing offered and are under the legal limits for alcohol or cannabis.
The officer cannot mislead you when reading you the warning and he cannot lie to you either. If the officer lies to you about the amount of time you will serve on your suspension or the terms of the suspension, this could be a basis for rescission. The warning must always be read to the motorist. Even if the defendant is being uncooperative, the warning must still be read. Otherwise, this may form a basis for rescission.
Reason #2: You did the tests they requested, but you weren’t actually over the legal limit.
In order to win on this ground, you will have to convince the judge that you did not actually blow above 0.08 (or exceed the limit in nanograms for cannabis, or have any controlled substances in your system). This can be shown through several different ways. You could prove that the breathalyzer machine was faulty or broken in some way. Perhaps it displayed an error message or wasn’t working properly. You could also prove that the sample was diluted by something in your mouth such as mouthwash. There have even been cases where belching prior to taking the test due to acid reflux was shown to have influenced the breathalyzer test. You can use any evidence to prove that the chemical testing was unreliable, including direct testimony from the motorist themselves that they were not under the influence of drugs or alcohol. You can present any facts showing that you were sober, including: remembering the full route you took home, performance on the field sobriety tests, the conversation you had with the officers, the ease of which you found your license and registration, etc.
Reason #3: You did not refuse to submit or complete the required tests.
This basis for rescission is simple, but it just means that you did not refuse to submit or complete the required tests. Body cameras and dash cameras can be used at this point to prove that you either (1) were not asked, or (2) agreed to it but then were never given the tests. However, the definition of “agreed” is broader than you may think. If you simply do not follow the instructions that the officer gave you regarding how to take the test, this will be considered a refusal. A common occurrence is for a driver to be labeled as a “refusal” even though they tried to blow the machine but it resulted in “insufficient sample”. In such a circumstance, it may be up to the Judge to determine whether the driver truly tried to blow hard into the machine or whether they were simply puffing up their cheeks and pretending to blow. You must pay careful attention to what the officer says and follow his instructions, otherwise the Secretary of State may consider this to be a refusal.
Reason #4: You were not properly placed under arrest
This basis seems self-explanatory, but you actually must be arrested for a violation of an Illinois law or a local ordinance. You must also be given a Uniform Traffic Ticket. Without this taking place, you cannot get a statutory summary suspension. It is important to note that you will often get two tickets for your DUI, as there is more than one way to prove a DUI in Illinois.
Reason #5: The officer did not have probable cause to believe you were driving or in actual physical control of the car while under the influence of alcohol, drugs, or a combination of both.
This is one of the more common reasons people have their statutory summary suspension rescinded. The officer needs probable cause to believe that you were actually under the influence. If the officer has no good reason to pull you over, this will be grounds for rescission of the suspension. Anonymous reports that a driver is driving drunk or unusual driving patterns are not always enough to satisfy this standard. The Illinois Supreme Court has even found that stopping momentarily in the middle of the street, driving too slowly, or momentarily crossing into a prohibited lane to avoid a parked car or hazard will not justify a stop to investigate impaired driving. There must be concrete and specific facts which caused the officer to believe that you were impaired by drugs or alcohol – shown by either the way you were driving, or the way you were acting after you were pulled over.
To prove the officer lacked probable cause, the lawyer will typically call the police officer or Illinois State Trooper. The probable cause must be based on what the officer knew at the time they was pulling you over and questioning you (not what the officer found out afterwards). You can show the video of the actual stop and the questioning to prove that what the officer knew did not rise to the level of probable cause. For example: if you have watery eyes and deny drinking, should the officer have asked you why your eyes were watery and red? If the judge believes that you were merely tired or had been crying, this will work against the officer having probable cause that you were drunk. Sometimes, lawyers choose not to show the video of the actual stop as it will work against their client. This is where a lawyer’s strategy comes into play when deciding who they will decide to call as a witness and what evidence they will present.
In addition, to be given a Statutory Summary Suspension you actually need to be on a public roadway or highway. The case law defines this as any public road in the state and oftentimes parking lots as well. Being on private property cannot justify a Statutory Summary Suspension. The officers also can’t generally just run into your home and arrest you while you are no longer in control of the car. The definition of “in control” is much broader than most people think. However, if the keys are in the ignition, even if you are sleeping, you will likely be found to be in control of the automobile. People have even been found to be “in control” of the automobile while they are physically outside of the car and pushing it in the snow.
Remember, if you do receive a statutory Summary Suspension - driving on it is a serious offense. You could be charged with a felony or even receive a mandatory 30-day prison sentence depending on your driving abstract / record (or possibly hundreds of hours of community service as well).
In the event that you do receive a Statutory Summary Suspension, always keep your bond and Notice of Statutory Summary Suspension sheets of paper with you in the car. You can show these to prove to an officer you are allowed to drive for the first 45 days after your suspension and also that you properly posted bail.
If you have recently lost your driving privileges after a DUI or have a pending case, you need to talk to an experienced and knowledgeable team of traffic attorneys. Our knowledgeable lawyers can assess your chances of getting your driver’s license back and figure out the best course of action for you. Contact Mitchell S. Sexner & Associates LLC today at (312) 644-0444 for a free consultation or to arrange an office visit.